628

SMEAD'W!A.RMING "

J:i'-

VENTILATING CO. Y. FULLER. CO. et al.

,

WARRmN

(Circult Court of Appeals, Second Circuit. . ,

August 1, 1893.)

1.

PATll:N1'$ ll'()R INVENTIONS-:--DRY CLOSll:TS.,....NoVELTY.

Patent NO. 314.884, gJ,'lIJl1ed March 31, 1885, to Isaac ,D. Smead, for a dry clo.set In which warm air drawn by ventilating pipes from the rooms of abillldlng Is used to desiccate fecal matter by passing the air through a vault made in the form of a tube, and so arranged as to receive deposits distributed along its surface in comparatively small quantities at any give» place, is not Without novelty, in view of patent No. 264,586, granted. September 19, 1882, to William So Ross, for a vault which is placed between a turnaceand a smoke flue, and in which fecal deposits are received on a shelt, over and around which products of combustion are made 1;0, pass. As Si:nead did not originate the Idea of ,utilIZing the warm alrwhlch was drliwn trom a room, or the means by which the,alr was Introduced to the vault, but took theventllatlng ducts, the gathering chamber, and the vent shatt of the Ruttan system, and simply improved the vault, he canpot,omit the ducts, ,and claim that his patent any openings Qr which perform the otlice, of ventilatl,ng pipes, and Introduce all' Into the vault. '

l.

&MJC.,....ENl.ARGING CLAIM.

& SAME-INFRINGEMENT.

, Where "flue is constructedtrom II. urinal tJ) a vault room, In 'which there is.1L grate, and the ,foul all', trom the' urinal ia 1h'awn through the tlue lnt() tJ;le vault,and then out Of doors through a chllIlney, the flue the Smead patent, as it conveys a portion ot warm 'air into the' vault,and tendS to prodUce desiccation.

the CirclJitOourtqftJie United States for the Northern District of New York. , In Bill by tl}.e,Smead Warming & Company a.gaipst,:F'vJJer & WarrenOompany and the Fuller & Warren Warm-: ing& .Ventilating Company for infringement of .letters patent No. 314,884, granted March .31, 1885, to Isaac D. Smead, for a dry doset. ,bill was dismissed in the ,court below, and ant John W. 'Munday and Lysander Hill, for com:plainant. Esek Cowen, for defendants. Before':LAOOMiBE and Circuit Judges. SHIPMAN, Circuit Judge. This.is an appeal from a decree of the circuit court for the northern district of New York, which dismissed, tllecomplainant's bill in equity for an alleged infringement ofle#irspatent of the United States No. 314;884, dated March 31, 1885, 't4Isaac D. Smead, for a dry closet. This had previously been the subject of examination in the same' court in the case of Smead v.' School Dist., 44 Fed. Rep. , 61,4. Th,e,,0,pinion of Judg l,'pthat ca,se contained the tollowing careful description' of the' invention:

dl:v ot the (8. one In .which all' Is to destccatefecal depositS, render them innocuous; and remove the foul odors from the buUd" tug. The treatment of such deposits in billldings a large number

SHEAD WARMING & VENTIJ.ATING CO. V. FULLER & WARREN CO.

627

of persons use the closets is a problem . wbich architects and sanitary engineers have attempted to solve in various ways. Water-closets, with their sewer connections, involve the well-known danger of the generation 'of disease germs, as well as the expense and annoyance commonly incident to plumbing. Earth closets smother the foul odors, and do not thoroug-hly dry the deposits, and the absorbing material so soon becomes charged with the odors that the closets become offensive if they are not frequently and carefully cleansed; and it would seem manifest that they could not be'practically employed for the use of several hundred persons in a single building. The dry closet, in which the deposits are desiccated by an air current constantly forced into contact with them, is especially adapted for use in buildings where 1lb.e general system of heating and of ventilation can be utilized to furnish the air current, and convey it out of the building. The present invention is more especially designed for use in such buildings. The invention described in the specification and shown in the drawings consists of a system of foul-all' ducts, a gathering room, a deposit vault, and a vent shaft, so constructed and arranged in relation to each other that the air drawn from the various rooms in the building to ventilate them shall be delivered at one end of the vault, and pass horizontally through it to and out of the vent shaft. The foul-air ducts leading from the several apartments may be constructed so that each one will venttlate several rooms, or only a single room. They are connected with the rooms, preferably by a register, and are connected by intermediate ducts with the gathering chamber, so as to concentrate there the entire volume of air drawn from the buillHng. The gathering room is located at one end of and opens into the vault. The vault Is a horizontal tube, which serves as an air duct between the gathering room and. the vent shaft. It is oblong In form, and is of suffi.clent length to receive the fecal deposits from a series of closets located side by side above it. The vent shaft, or exit shaft, extends from the base of the vault to and above the roof of the building. It opens into the vault, and Is provided with means for creating a strong draught through the vault from the gatherinjt room. The specification states that the location of the closets in the building will be governed by circumstances, and it is immaterial where they are located, so long as the vault is so arranged that the air from the building will be conducted through it, and from thence into the outer atmosphere at such a point that it will not be wafted back into the building throu£\,h the doors or windows. The specification implieS that buildings like those in Which the dry closets will be employed are usually heated by a furnlll'e or furnaces; and in that case the means described for securing the nece!:lsarv draught for the vent shaft are provided by building the furnace flue alongside the vent shaft, and heating the vent shaft by the smoke antl gasps which escape from the furnace; and when the furnace is not in use a heater of any suitable kind, located within the shaft, is employed; or of th." known appliances in use may be availed of to increase the dranght,' In ease It should be found necessary to do so. The specification contains this sum· mary of the invention: 'From the foregoing description It wiIi be seen that the gist of my invention wnsists in so arranging the closets in relation to the exhaust ducts and ventilating shaft or shafts as to cause the foul all' which is drawn from the rooms to pass through the vault which receives the fecal deposits, and desiccate the same, and at the same time take up and carry off all foul· odors. As the air leaves the rooms at a temperature of about 65 degrees, it will readily be seen that it is in a condition to rapidly absorb moisture and produce a drying effect upon any matter with which it may be brought in contact. By this method the fecal matter Is quickly desiccated and greatly reduced in volume, so that its removal is easily and quickly accomplished. If desired, a small amount of' plaster, dry earth, or other absorbent material, may be from time to time thrown Into the vault; but. in practice, I have not found this necessary or advisable, because of the rapidity with which deposits in the vault were dried up by the passage through it of such a large volume of warm air. By this method I am enabled to av(}id all the serious difficulties or objec'tiOl's which have heretofore existed in reference to closets, especially when located within buildings, the

628

FI1lDERAL REPORTER,

vo1.; 57.

tllemselves being as free odors as' theor<1inai-r ,rooms,o! the building.' " '" ' "The claims of the patent 'are as follows: '(1) The combination and arrangePlent of one or more, ducts' for the removal of the foul air from a room or room,S of a building; a vault for receiving and retaining the fecal deposits, connectedwJ,th said duct or ducts; and a or exit shaft, connected with /!Ill14 vault, Whereby the warm air from within the building is made to dllSiccate or' dry the deposit in the vault, and remove all 040rs therefrom to the outer li1r, as set forth. (2) The combination in a building of a series of foul-ill ducts, B, a gatherlDg room, C, a vault, D, and a ventilating or exit shaft, E, 'With means, substantially such as described, for creating a draught through the same, substantially as and for the purposes set forth. (3) A dry closet arranged in relation to the ducts which convey the air from the room or rooms in a building,and the ventilating or exit shaft, substantially as shown and described, "'1J.ereby the foul and warm air from the room or rooml;! il;! I!lade to pasl;! through said dry closet, and thence out through the ventlIatiIl,g shaft, as and for the purposes set forth.' "

In 1:862, Henry Ruttan, of Oanada, published a- valuable book upon the. ventilation buildings, which described .a. ventilating and heating ,system. waich has been extensively and successfully used in public 'buildings' and private· residences in this country. He also described in the same book a closet to be used in with his ventilating system, which, for the reason hereinafter mentioned, proved unsuccessful, and an attempt which was made to introduce it into private residences was 'soon aban· doned. It had the vent shaft of his ventilating system ItDd a single basin, not a tube or an air duct, in which all the cl.eposits from the variops closets were collected, .and .which was placed in front of an opening into the vent shaft. The air current, whatever it was, 'reached only the top of the deposits, and did not thoroughly dry them. It might ta"-e away odors, but there was no desiccation. Smead, who was connected with the corporation which was introducing to the public the Ruttan ventilating system, thought that an dry closet be made, and, !nstead of a single basin, a tubular vault between the gathering chamber and the vent shaJt. This tube received the deposits distributed in small quantities along its length, and was a conductor for an air current. The deposits, when thus thoroughly under the influence of a continuous and large current of warm air, were thoroughly and rapidly dried, and made odorless. It is indispensable that the air should have been warmed. The introduction of air from the outside, of the building is ineffectual. The closet of Smead, thus made successful, is largely used, and is of great benefit in buildings having a large number of occupants. His first claim, although his' vault differed radically from Ruttan's basin, was broad enough to include a vault of any description and was therefore, if literally construed, anticipated by Ruttan, and, as the result of the Wells'viUeOase, was .disclaimed. The second claim specifies the actual inv-ention of Smead as described in the specification. The third claim is for the elements of the second claim, except that the ducts are not called a. "series," and the gathering chamber is omitted,-an;element not essential, and which can be omitted without impairing the beneflcial character of the closet.

SMEAD WARMING & VENTILATING CO. V. FULI.ER & WARREN CO.

'629

The defendants in thisoase rely to a certain extent,. as did the defendant in the Wellsville Case, upon; a patent to William S. Ross, No. 264,586, dated September 19, The invention therein described consisted in mounting the ordinary privy box over a metallic frame and a horizontal furnace with a chamber for the deposits. It was, as stated by Judge Wallace, "a furnace for baking or burning fecal deposits by heat." The vault is between the furnace and the smoke flue; the deposits are received upon a shelf within the vault, and the products of combustion pass over and around the shelf. This patent has no relation to the Smead device. The question of infringement is the important <me in this case, and arises upon the construc1ion of two dry closets in a public schoolhouse in Somerville, Mass. They were made by one or both of the in accordance with the plan or system advertised by the Fuller & Warren Company. The first and second stories of the Somervillebuild'ing were ventilated without any connection with the basement. Two closets, one for the boys amd another for the girls, were placed in the basement, which waS subdivided by arches and openings into separate rooms, not closed by doors. The two closets were constructed alike, except that the girls' closet did not have the duct which led into the boys' closet from the urinal, and which will be described hereafter. A description of the boys' closet will be sufficient. The deposits in the Fuller & Wanen 'Vllult are destroyed by cremation. Those in the Smead vault are, after the drying process is completed, removed in baskets. At one end of the vault in the Somerville closet is a vent shaft. At the other end, in the wall which separates the vault room from the janitor's room, is an opening, about 20 inches wide and from 16 to 20 inches high, in which is a grate, used exclusively for drying the air which enters the vault through the opening. The persons in charge of the building are instructed by the printed directions for operating the system to make a fire in the grate once each week, to thoroughly dry the solid and evaporate the liquid matter in the vault. The fire in the grate increases the evaporating power of the air, and dries the fecal matter, so that it ma,Y be burned without offensive odor. Such a fire must be used ·in cold or damp weather, for warm air is a necessity. It is probably true that in warm weather a fire may be dispensed with. A supply of air constantly enters the vault from the open'jng, is drawn through the vault, serves to ventilate the room in the basement in which is the opening, and this air, when sufficiently warm, dries the deposits. An opening or a slot along the length of the urinal in the room in the basement known as the "boys' play room," when it reaches the end of the urinal slab, is closed circumferentially, and becomes a flue, which curves around the end of the closet, and delivers the aiJr it has accumulated into a little space at the end of the vault in which is the opening. The air in the urinal is drawn through the closet vault to the ch'imney. This duct or flue was made for the purpose of ventilating the urinal, and successfully accomplishes that ,object. The holes or apertures are not pipes, as the ducts of the

'630

FEDERAItj

vol. 57. ,

-,

Smead specitlcation' are, but the,air in the basement is drawn into them, and thisai:r,when it heated, and pas$estbrough ,accomplishes the work which the foul warm ail' conveyed through the ventilating ducts of the Smead ,system also accomplishes. As the. construction of the, two closets in the Somerville house is not the: ,same, the question of "infringement by the 'girls' closet, in which. ,apertures only are used, will be first considered. The complainant contends that am aperture is a short duct, and that it is of no importance whether the duct of the patent is long or short, and that, if accomplishes the result of the invention, it 'is of the patent. , This statement evades the question, which is whether the ducts of the claims of the patent must not be construed, in the light of the specifieation and of the history of the invention, to be ducts which are the pipes of the ventilating system; in other, words, whether the combination in the claims is not limited to ,a cOJ;D.b,ination, of, ventilating pipes and the other elements. The circuit i.udge, in considering this question, came to the reluctant that "the ducts of the patent are something more than an aperture in ,a wall between one room and another." The court said:
description shows that the term Is used in the common sense ot a tube or canal by which a fiuid or other substance is conducted or conveyed. The duct ot the patent Is designed for air in a system of ventilation, to con· duct the air taken out for ventll!Ltion from a series of rooms or a single room to the entrance of the dry closet, tor use there in desiccating or drying the deposits. ,The pate,nt, speaks of the ducts as 'foul-air shafts,' which convey the air trpm the rOOIIl, built in the walls or partitions, so as to not occupy the space in the room, or alongside 'of the walls in the sides or in the corners of the rooms,' they will afford the least obstruction."

This language truthfully expresses the obvious idea which the patentee had of his ducts, which were, in his mind, the pipes which contained, in the language of, the specification, "the foul warm air which is taken out ,of the rooms for ventilation.", Althoogh this is true, if the invention had been a broad one, the patentee -would be entitled toa broad construction of his and a court would be at liberty to give latitude to the language of the claims. The inventor took the ventilating ducts, the gathering chamber, and the vent shaft of the Ruttan book, discaTded the single basin, ood lengthened the vault, so that the current of air might have free access to the and thereby made a good closet, but his invention was nota primary one. He did not originate the idea of utilizing the warm air which was drawn from a room, or the means by which the air is introduced into the vault, and he did not apparently .have in his mind, or suggest in the any othell' meoos,. . construction to be given to his patent must. correspond with the extent of his invention. The actual invention, if in cooformity.with the language of the claims, should control in the construction of patents. A strict construction should not be resorted to.if it becomes a limitation upon the actual inventioll, unless such construction is requ'ired by the claim, it being understood that the

FEATHERSTONE V. GEORGE R. BIDWELL CYCI,E CO.

631

construction should not go beyond and enlarge the limitations of the claim. Merrill v. Yeomans, 94 U. S. 568; Railroad Co. v. Mellon, 104 U. S. 117. In this case Smead's improvement upon Ruttan was in the vault, and not in any of the other elements, and to permit him to omit the pipes and include any openings, although they perform the office of pipes, by which air is introduced into the vault, would give him a larger invention than he made. Railway Co. v. Sayles, 97 U. S. 554. We conCUT with the circuit court that the patent is not infringed by the use of the girls' closet. The boys' closet has an additional element.in its constr'Uction. The flue from the urinal in the play room was conducted into the end of the vault in which the grate was placed for the purpose of ventilating the urinal; the foul air was drawn through the flue into the vault, and out of doors through the chimney, and thereby ventilation was successfully accomplished. The testimony of the defendants' witnesses makes it apparent that this flue is a duct in the exact sense in which the word is used in the patent. It conveys a portion, though probably a small portion, of warm air into the vault, and tends to produce a desiccating result. If no other means was used, this flue would be insufficient, bnt by its use the defendants have intruded upon the territory covered by the Smead patent, and have infringed its third claim. The patent cannot justly be construed to have reference only to a series of ducts leading from different stories of a building. It is not compulsory that in a building of more than one story the invention should be used in all the stories, or in all the rooms, or in more than one room of It single story. The third claim indicates that the foul-air ducts may convey the air from a single room.. The decree of the circuit court is reversed, with costs, and the cause is remanded to that court, with instructions to enter a decree for injunction against the infringement of the third claim of the patent, and for an accounting and for
FEATHERSTONE v. GEORGE R. BIDWELL CYCLE CO.

(Circuit Court of Appeals, Second Circuit. August 1, 1893.)
1.

PATENTS FOR INVI<lNTIONS-REISSUE- V ALIDITy-,PNEUMATIC TIRES.

The fourth claim of reissued patent No. 11,153, granted March 24, 1891, to John Boyd Dunlop, which covers the combination with the rim of a cycle wheel, and an inflated, expansible tire, of a tubular, nonexpansible confining envelope surrounding said tire, and provided with flaps or free edges turned over and cemented to the inner face of the rim, is invalid, because it seeks to broaden the invention of the original patent of September 9, 1890, by omitting from the combination an element clearly described in th'" specifications, and included in the claim, namely protective strips of caoutchouc interposed between the edges of the rim and the strengthening folds. 53 Fed. Rep. 113, reversed.

2.8AMR-OMISSION OF ELEMENTS.

The omission from the claims of a reissued patent of an element of the combination which is clearly a part of the invention described and claimed in the original, and obviously constitutes an efficient and valuable member will render the reissue invalid, although such element is not indis-